Duensing v. Gilbert et al

Filing 29

ORDER re 9 MOTION to Dismiss filed by Taser International Inc. Response due by 12/13/2012. Reply due by 12/20/2012. IT IS FURTHER ORDERED that the Rule 26(f) conference must be held on or before February 18, 2013, regardless of whether the court has issued a ruling on 9 motion to dismiss. Signed by Magistrate Judge Cam Ferenbach on 12/3/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RAYMOND JAMES DUENSING, JR.,

2:11-cv-01747-GMN -VCF

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Plaintiff,

ORDER

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vs.
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DAVID MICHAEL GILBERT, et al.,

(ORDER TO SHOW CAUSE HEARING)

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Defendants.
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Before the court is the matter of Duensing v. Gilbert et al (Case No. 2:11-cv-01747-GMN
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-VCF).
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A.

Background

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Plaintiff filed his complaint on October 28, 2011, asserting claims for (1) unreasonable seizure,
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(2) intentional infliction of emotional distress, (3) negligent infliction of emotional distress, (4)
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excessive force under 42 U.S.C. § 1983, (5) police negligence, (6) products liability-negligence, (7)
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product liability-strict liability, (8) assault and battery, (9) perjury, (10) falsifying and destroying
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evidence, and (11) defamation and libel against Officer David Michael Gilbert, individually and in his
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official capacity, Taser International, Inc. (hereinafter “Taser”), the Las Vegas Metropolitan Police
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(hereinafter “LVMPD”), and DOES 1-100 and ROES 101-200. (#1). Plaintiff’s allegations arise from
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an incident where defendant Officer Gilbert allegedly stopped plaintiff and shot him with a Taser brand
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electric rifle. Id.
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Defendant Officer Gilbert filed his answer on November 17, 2012 (#3), defendant LVMPD filed
its answer on February 29, 2012 (#7), and defendant Taser filed a motion to dismiss on March 14, 2012

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(#9 and #10). On March 15, 2012, the court entered a minute order regarding the requirements of
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Klingele v. Eikenberry and Rand v. Rowland as to the motion to dismiss (#9), and stating that the
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opposition was due fourteen (14) days from the date of the minute order, and the reply was due seven
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(7) days after the filing of the opposition. (#11). Plaintiff filed a response to the motion to dismiss on
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April 11, 2012, wherein he argued the Klingele and Rand cases. (#13). Defendant Taser filed a
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response to plaintiff’s filing (#13), asserting that the motion to dismiss (#9) was inadvertently not
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physically mailed to plaintiff on March 14, 2012, the date of its filing, but was subsequently received by
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plaintiff on April 9, 2012. (#15). On May 17, 2012, defendant Taser filed a reply in support of its
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motion to dismiss (#9). (#20). The motion to dismiss (#9) was referred to the undersigned on October
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19, 2012.
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On October 23, 2012, the undersigned issued a minute order scheduling a hearing on the motion
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to dismiss (#9) and the plaintiff’s response thereto (#13) for November 5, 2012. (#23). The minute
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order was distributed electronically via CM/ECF to the parties that are registered Pacer users, and for
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the parties who are not a registered Pacer user, a hard copy was mailed to the address as listed on the
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Court’s docket sheet. Id. On November 5, 2012, the court held a motion hearing at 1:30 p.m. in
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Courtroom 3B. (#24). Appearing for defendants were Isaiah Fields, Esq. and Thomas Dillard, Esq. Id.
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The plaintiff failed to appear. Id. On November 7, 2012, the court issued an order to show cause why
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plaintiff should not be held in contempt for failing to comply with court orders and why the undersigned
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should not recommend that this case be dismissed as a sanction. (#25). Plaintiff was ordered to file a
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response to the order to show cause on or before November 20, 2012, and any reply thereto was due on
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or before November 27, 2012. Id. The court scheduled a hearing for November 29, 2012. Id.
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On November 20, 2012, plaintiff filed a response to the order to show cause (#25), asserting that
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he did not appear at the November 5, 2012, hearing because he had not checked his mail for two weeks
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and did not get the mailed notice of the hearing. (#27). Plaintiff states that he received notice of the

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hearing on November 7, 2012, and that his failure to appear was due to ignorance and was not “intended
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as a slight to the court.” Id. Plaintiff asks this court not to sanction him and not to recommend
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dismissal of the action. Id.
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B.

Show Cause Hearing

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The court held a show cause hearing on November 29, 2012. (#28). Plaintiff appeared pro se,
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and Isaiah Fields, Esq. (telephonically) and Thomas Dillard, Esq. appeared on behalf of defendants. Id.
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The court advised plaintiff that pursuant to Local Rule 10-2(a), he is required to include his address on
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all papers filed with the court and that the court relies on this address as a way to communicate with
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him. Id. The court stated that it reviewed plaintiff’s response (#27) to the order to show cause (#25)
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and was not inclined to impose sanctions against plaintiff. Id. The court discussed with plaintiff the
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possibility of filing electronically using CM/ECF, and instructed plaintiff to comply with Special Order
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109 and to take the appropriate steps to be permitted to file electronically. Id.
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The court also addressed the pending motion to dismiss (#9), and plaintiff informed the court
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that he wished to file an opposition thereto. Id. The court ordered plaintiff to file any opposition to the
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motion to dismiss (#9) by December 13, 2012, and defendant Taser to file any reply in support of the
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motion to dismiss (#9) by December 20, 2012. Id. As the parties agreed that the ruling on the motion to
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dismiss (#9) would impact the discovery in this action, the court delayed the Rule 26(f) conference until
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February 18, 2013.
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Accordingly and for good cause shown,
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IT IS ORDERED that plaintiff’s Opposition to defendant Taser’s Motion To Dismiss (#9) is due
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on or before December 13, 2012, and defendant Taser’s Reply is due on or before December 20, 2012.
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...
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...
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...

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IT IS FURTHER ORDERED that the Rule 26(f) conference must be held on or before February
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18, 2013, regardless of whether the court has issued a ruling on the motion to dismiss (#9).
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DATED this 3rd day of December, 2012.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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